Armstead v. Jackson

Decision Date24 August 1982
Docket Number49564,Docket Nos. 49059
Citation328 N.W.2d 541,121 Mich.App. 239
PartiesHorace ARMSTEAD and Ernestine Armstead, Plaintiffs-Appellants, v. Robert JACKSON, Donald Arnold and Royal Oak Township, a municipal corporation, Jointly and Severally, Defendants-Appellees. 121 Mich.App. 239, 328 N.W.2d 541
CourtCourt of Appeal of Michigan — District of US

[121 MICHAPP 241] Kelman, Loria, Downing, Schneider & Simpson by Nicholas J. Rine, Detroit, for plaintiffs-appellants.

James M. Hacker, Fraser, for Royal Oak Tp.

Before V.J. BRENNAN, P.J., and KAUFMAN and KELLY, JJ.

PER CURIAM.

Plaintiffs' suit for assault and battery and malicious prosecution resulted in directed verdicts in favor of defendants Officer Donald Arnold and Royal Oak Township. With regard to the third defendant, Officer Robert Jackson, the jury returned verdicts of $136,500 in favor of plaintiffs on the assault count and $127,083 in favor of plaintiff Horace Armstead on the malicious prosecution count. The latter award was trebled pursuant to M.C.L. Sec. 600.2907; M.S.A. Sec. 27A.2907, resulting in a total verdict of $517,749. The lower court granted a new trial to defendant Jackson after plaintiffs refused remitture of all damages in excess of $100,000. Plaintiffs appeal as of right from [121 MICHAPP 242] the granting of the directed verdicts and by leave granted from the granting of the new trial.

The litigation arose out of a confrontation between plaintiff Horace Armstead and defendant Jackson in which Armstead was shot and wounded. Officers Jackson and Arnold were responding to a citizen's report of two men fighting in which the citizen indicated that one might have a gun. Armstead and a second witness testified that the shooting was largely unprovoked, while Officer Jackson testified that Armstead knocked him down with a blow to the jaw, threatened to kill him and reached for his back pocket as if to retrieve a weapon. Plaintiff Horace Armstead was hospitalized for six weeks and has been left with scars, circulatory problems and loss of sexual function. He missed substantial time from work and has been forced to accept less strenuous employment. Ten days after plaintiffs filed the instant suit, criminal proceedings were commenced against plaintiff Horace Armstead upon the complaint of Officer Jackson charging Armstead with disorderly conduct and resisting arrest. On plaintiff Horace Armstead's motion, the complaint and warrant were subsequently quashed. Plaintiffs thereafter amended their complaint to set forth malicious prosecution counts.

Plaintiffs initially argue that the trial court erred in granting a directed verdict in favor of Royal Oak Township. The court ruled that the township was protected by governmental immunity since the actions of Officer Jackson were made pursuant to a governmental function. We agree with plaintiffs' contentions.

Officer Jackson's actions involved responding to a reported breach of the peace and subsequently swearing out a criminal complaint on that alleged [121 MICHAPP 243] breach. It cannot be seriously argued, and is not so argued, that such activities are not effectively accomplished only by the government and are, therefore, governmental functions. Parker v. Highland Park, 404 Mich. 183, 199-200, 273 N.W.2d 413 (1978); Deaner v. Utica School Dist., 99 Mich.App. 103, 107, 297 N.W.2d 625 (1980); Ross v. Consumers Power Co., 93 Mich.App. 687, 287 N.W.2d 319 (1979), lv. gtd. 408 Mich. 959 (1980).

However, the specific acts complained of were intentional torts, e.g. assault and battery and malicious prosecution.

A majority of the Supreme Court Justices are in accord that intentionally tortious acts committed by agents of governmental units are not activities within the exercise or discharge of a governmental function and, consequently, not protected by governmental immunity. Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979); McCann v. Michigan, 398 Mich. 65, 247 N.W.2d 521 (1976); Shunk v. Michigan, 97 Mich.App. 626, 296 N.W.2d 129 (1980); Antkiewicz v. Motorists Mutual Ins. Co., 91 Mich.App. 389, 283 N.W.2d 749 (1979), rem. on other grounds 407 Mich. 936 (1979).

In the instant case, the trial court granted defendant township's motion for a directed verdict at the close of plaintiffs' proofs on the grounds that the activities were governmental functions. Therefore, our task is to determine if the plaintiffs had produced competent and sufficient evidence as to the occurrence of intentionally tortious conduct on the part of defendant township's agent to overcome the defense of governmental immunity.

Our review of the proofs and reasonable inferences therefrom drawn in a light most favorable to the non-moving party convinces us that the plaintiffs had produced sufficient evidence to sustain a [121 MICHAPP 244] jury finding that Officer Jackson had committed both the intentional torts of assault and battery and malicious prosecution. Signs v. The Detroit Edison Co., 93 Mich.App. 626, 631, 287 N.W.2d 292 (1979); Beasley v. Grand Trunk W.R. Co., 90 Mich.App. 576, 583-584, 282 N.W.2d 401 (1979). Hence, the trial court was precluded from directing a verdict in defendant township's favor on the grounds of governmental immunity.

We reach a contrary conclusion with regard to the directed verdict in favor of Officer Arnold. There was no competent and sufficient evidence to show that Arnold was involved in either the assault or prosecution of plaintiff Horace Armstead. The testimony indicated that Officer Arnold was preoccupied with handling the person with whom plaintiff Horace Armstead had been fighting when the assault occurred. Criminal charges against plaintiff Horace Armstead were instituted solely upon the complaint of Officer Jackson. Since there was no competent and sufficient evidence of Officer Arnold's liability, the directed verdict was appropriate. McKinch v. Dixon, 391 Mich. 282, 215 N.W.2d 689 (1974).

According to the foregoing analysis, a partial new trial must be granted as to the issue of liability only on behalf of defendant Royal Oak Township. We add the caveat that proof of the officer's intentional tortious conduct sufficient to overcome the township's defense of...

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6 cases
  • Rushing v. Wayne County
    • United States
    • Court of Appeal of Michigan — District of US
    • 6 Diciembre 1984
    ...Chivas v. Koehler, 124 Mich.App. 195, 200-201; 333 N.W.2d 509 (1983), and the cases cited therein. In Armstead v. Jackson, 121 Mich.App. 239, 243, 328 N.W.2d 541 (1981), we determined that: "A majority of the Supreme Court justices are in accord that intentionally tortious acts committed by......
  • Parr v. Central Soya Co., Inc.
    • United States
    • U.S. District Court — Western District of Michigan
    • 12 Enero 1990
    ...Furthermore, the Court does not find the $50,000.00 award so excessive as to "shock the judicial conscience." See Armstead v. Jackson, 121 Mich.App. 239, 328 N.W.2d 541 (1982). D. COMPARATIVE Lastly, the defendant asserts that any award of exemplary damages must be reduced to reflect the pl......
  • Brewer v. Perrin
    • United States
    • Court of Appeal of Michigan — District of US
    • 4 Mayo 1984
    ...discharge of a governmental function." Lockaby v. Wayne County, 406 Mich. 65, 77, 276 N.W.2d 1 (1979). See also Armstead v. Jackson, 121 Mich.App. 239, 328 N.W.2d 541 (1981); Shunk v. Michigan, 97 Mich.App. 626, 296 N.W.2d 129 (1980). But at times, the government finds it necessary to do th......
  • Raudabaugh v. Baley, Docket No. 65739
    • United States
    • Court of Appeal of Michigan — District of US
    • 7 Junio 1984
    ...(1981).7 407 Mich. 891, 284 N.W.2d 125 (1979).8 119 Mich.App. 524, 534, fn. 2, 326 N.W.2d 908 (1982). Accord, Armstead v. Jackson, 121 Mich.App. 239, 244, 328 N.W.2d 541 (1981); Graves v. Wayne County, 124 Mich.App. 36, 333 N.W.2d 740 (1983).9 Under M.C.L. Sec. 600.2907; M.S.A. Sec. 27A.290......
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